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TEXAS SUPREME COURT.

BRITISH AMERICA ASSURANCE COM

PANY, Appt.,

v.

George E. MILLER.

(........ Tex.....................)

Insurance on wearing apparel, jewelry, satchels, trunks, books, etc., "while contained in" a specified building, does not cover the property when located at another place where the insured was temporarily staying with his family, although the insurance agent knew of his babit of taking his family periodically to such place for a temporary stay.

Q

(January 27, 1898.)

UESTIONS certified by the Court of Civil Appeals for the Second Supreme Judicial District arising upon an appeal by defendant from a judgment in favor of plaintiff in an action brought to enforce payment of the amount alleged to be due on an insurance policy. Answers favorable to defendant.

The facts are stated in the opinion. Messrs. William Thompson and R. S. Baker for appellant.

Messrs. Carrigan & Montgomery and Theodore Mack, for appellee:

The written portions of an insurance policy will overcome the printed portions of the policy.

Bills v. Hibernia Ins. Co. 87 Tex. 552, 29 L. R. A. 706.

The court will not imply anything in favor of a forfeiture, but must try the matter by the language used by the parties.

Bills v. Hibernia Ins. Co. 87 Tex. 552, 29 L. R. A. 706.

If the conditions or warranties be repugnant to the portions of the policy describing the subject of insurance, the condition must yield to that portion which expresses the terms of liability.

Bills v. Hibernia Ins. Co. 87 Tex. 552, 29 L. R. A. 706.

A stipulation which is not upon penalty of forfeiture of rights under the policy, in event of failure to perform the same, will not render void the policy for failure to perform the stipulation.

May, Ins. 156, 157; Eakin v. Home Ins. Co. 1 White & Willson Tex. App. Civ. Cas. § 370. A distinction is taken between property described as contained in a certain locality in the sense of being absolutely maintained or stored in one place, in which case its removal is not contemplated, and property which from its very nature must be constantly removed. 1 Biddle, Ins. § 641.

Insurance on wearing apparel subjects the insurer to liability if destroyed while in its ordinary use elsewhere than in the locus de

scribed.

1 Biddle, Ins. § 641.

Georgia Home Ins. Co. v. Jacobs, 56 Tex. 369. The stipulation "all while contained in the Where there is a general and particular de-above described building," if entitled to be scription of the property, the particular description will control.

Words descriptive of location might, as to one class of property, or as to one kind of insurance, be treated as a statement of fact, relating to the risk, and as amounting to a stipulation or condition that the property should remain there; while as to another class of property, or as to other kinds of insurance, it might be construed as mere description for the purpose of identification.

DeGraff v. Queen Ins. Co. 38 Minn. 501. The language being selected and used by the insurer to express the terms and conditions upon which it issued, the policy will be strictly construed against it and liberally in favor of the insured.

Brown v. Palatine Ins. Co. 89 Tex. 590.

The language used must be construed according to the evident intent of the parties, to be derived from the words used, the subjectmatter to which they relate, and the matters naturally or usually incident thereto.

Brown v. Palatine Ins. Co. 89 Tex. 590. Forfeitures are not favored in law; and if the language used is fairly susceptible of an interpretation which will prevent a forfeiture, it will be so construed.

Brown v. Palatine Ins. Co. 89 Tex. 590. Every doubt arising from the terms of the instrument (insurance policy) must be resolved against the insurer.

NOTE. As to location of movable property as affecting fire insurance upon it, see note to Benton v. Farmers' Mut. F. Ins. Co. (Mich.) 26 L. R. A. 237;

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construed as a warranty, and not a representation, should only be considered as warranting the then present condition of the property, and not as a promissory warranty that it will be continued to be devoted to the same use.

East Texas F. Ins. Co. v. Kempner, 87 Tex. 236, 12 Tex. Civ. App. 533.

If the company desired to make its liability contingent upon the goods insured remaining in the dwelling house of appellee, it must have so expressed its desire by apt words.

Burlington Ins. Co. v. Brockway, 138 Ill.

644.

The language of the policy being the language of the underwriters, if susceptible of two interpretations, that must be adopted which will sustain the claim of the assured, and give him the indemnity it was his object to secure.

Goddard v. East Texas F. Ins. Co. 67 Tex. 71; Stone v. United States Casualty Co. 34 N. J. L. 376; Western Ins. Co. v. Cropper, 32 Pa. 351, 75 Am. Dec. 561; McKeesport Mach. Co. v. Ben Franklin Ins. Co. 173 Pa. 53; Boyd v. Mississippi Home Ins. Co. (Miss.) 26 Ins. L. J. 532; Graybill v. Penn Twp. Mut. F. Ins. A880. 170 Pa. 75, 29 L. R. A. 55; Noyes v. Northwestern Nat. Ins. Co. 64 Wis. 415, 54 Am. Rep. 631; Peterson v. Mississippi Valley Ins. Co. 24 Iowa, 494, 95 Am. Dec. 748; Mills v. Farmers' Ins. Co. 37 Iowa, 400; McCluer v. Girard F. & M. Ins. Co. 43 Iowa, 349, 22 Am. Rep. 249; Etna Ins. Co. v. Strout, 16 Ind. App. 160;

Lakings v. Phenix Ins. Co. (Iowa) 28 L. R. A. 70; Graybill v. Penn Twp. Mut. F. Ins. Asso. (Pa.) 29 L ̧ R. A. 55.

| and printed: "This form is attached to and constitutes the written and descriptive portion of policy No. 922,657 of the British America Assurance Company of Toronto.'"

The following is a condensed statement of the facts material for the decision of the question certified to us: Appellee, George E. Miller. was, on the 26th day of January, 1896, and still is, judge of the thirtieth judicial district of the state of Texas, which embraces the counties of Wichita, Clay, Archer, and Young. Judge Miller resided at Wichita Falls, in Wichita county, and owned a residence in that city, located as described in the policy of insurance sued on; and in which residence he resided with his family, which consisted of a wife and two children, respectively six and three years old. In the discharge of his official duties, Judge Miller held court twice in each year in the counties above named, at which times he carried his family with him; which facts were known to the agents of the appel

Longuerille v. Western Assur. Co. 51 Iowa, 553, 33 Am. Rep. 146; Everett v. Continental Ins. Co. 21 Minn. 76; Smith v. Mechanics' & T. F. Ins. Co. 32 N. Y. 399; Holbrook v. St. Paul F. & M. Ins. Co. 25 Minn. 229; London & L. F. Ins. Co. v. Graves (Ky.) 12 Ins. L. J. 308; De Graff v. Queen Ins. Co. 38 Minn. 501; Haws v. St. Paul F. & M. Ins. Co. 130 Pa. 113, 2 L. R. A. 52; Haws v. Fire Asso. of Philadelphia. 114 Pa. 431; Niagara F. Ins. Co. v. Elliott, 85 Va. 962; American Cent. Ins. Co. v. Haws (Pa.) 11 Atl. 107; 1 Biddle, Ins. § 641; 2 Beach, Ins. p. 22, note; Washington F. Ins. Co. v. Davison, 30 Md. 91; Fitchburg R. Co. v. Charlestown Mut. F. Ins. Co. 7 Gray, 64: Crosby v. Franklin Ins. Co. 5 Gray, 504; Allen v. Charlestown Mut. F. Ins. Co. 5 Gray, 384; Maryland Ins. Co. v. Bossiere, 9 Gill & J. 121: Allegre v. Maryland Ins. Co. 6 Harr. & G. 408, 14 Am. Dec. 209; Jolly v. Baltimore Equitable Soc. 1 Harr. & G. 295, 18 Am. Dec. 288; Citizens' Ins. Co. v. McLaughlin, 53 Pa. 487; Merrick v. Germania F. Ins. Co. 54 Pa. 282; Cumberlant at the time that the policy of insurance land Valley Mut. Protection Co. v. Schell, 29 ́ Pa. 31; Wall v. Howard Ins. Co. 14 Barb. 383; Dole v. New England Mut. Marine Ins. Co. 6 Allen, 373; Roth v. City Ins. Co. 6 McLean, 324; Howard F. Ins. Co. v. Bruner, 23 Pa. 50; Mobile Marine Dock & Mut. Ins. Co. v. Mc Millan, 27 Ala. 77; Bebee v. Hartford County Mut. F. Ins. Co. 25 Conn. 51, 65 Am. Dec. 553; Sayles v. Northwestern Ins. Co. 2 Curt. C. C. 610; Frisbie v. Fayette Mut. Ins. Co. 27 Pa. 325.

Brown, J., delivered the opinion of the

court:

The court of civil appeals for the second supreme judicial district has certified to this court the following statement and question: "We deem it advisable, both parties consent ing, to certify to your honors for decision the controlling, if not the sole, question in this case, which, briefly, is whether, upon the agreed statement below, the terms of the fire insurance policy declared on by appellee covered the loss sustained by him during the life of the policy in a fire at Henrietta, Texas, which not only destroyed the residence of one Fraser, where appellee and his family were temporarily boarding during a term of the district court then being held by appellee, who was the then regular judge of said court, and which was known to appellant at the time of the issuance of the policy, but also $840 worth of 'trunks, satchels, family wearing ap parel, watches, jewels, and jewelry in use,' belonging to appellee, and then in ordinary use by himself and family; the policy having been issued to him in Wichita Falls, Texas, the place of his residence, covering all loss or damage by fire to his dwelling house, there situated, as described in the policy; which policy, in the printed part, contained these words: 'While located and contained as described herein, and not elsewhere;' and the printed slip attached to said policy by the agent, and describing the property insured, expressly mentioned trunks, satchels, family wearing apparel,

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watches, jewels, and jewelry in use,' etc., all while contained in the above-described building;' and at the bottom of said slip is written

sued upon was issued, but the agents did not
know the length of time that the family re-
mained with him at each term of the court.
Anderson, Moore, & Bean were empowered to
make contracts for the appellant, the British
America Assurance Company, insuring prop-
erty situated in Wichita Falls against loss from
fire, but were not authorized to insure property
situated elsewhere. On the 26th of January,
1896, Anderson, Moore, & Bean, as agents for
the British America Assurance Company,
made and delivered to George E. Miller a
policy of insurance, from which we make the
following extracts: "British America As-
surance Company, Toronto, Canada. In con-
sideration of the stipulations herein named and
of twenty eight and dollars premium, does
100
insure Hon. George E. Miller for the term of
one year from the 26th day of January, 1896,
at noon, to the 26th day of January, 1897, at
noon, against all direct loss or damage by fire,
except as hereinafter provided, to an amount
not exceeding two thousand and ninety and
no dollars, to the following described
property while located and contained as de-
scribed herein, and not elsewhere, to wit:

00

$850 on his household and kitchen furniture, useful and ornamental, beds, bedding, linen, carpets, plate and plated ware, china, glass, and crockery ware, trunks, satchels, sewing machines, family wearing apparel, fuel and family supplies; also on musical instruments, printed books and music, mirrors, pictures, paintings, engravings, and their frames, statuary, bric-a-brac, watches, jewels, and jewelry in use; in case of loss none to be valued at exceeding cost; all while contained in the above-described building.'

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On the 7th day of October, 1896, Judge Miller was holding a regular term of the district court at Henrietta, in Clay county, and had with him his wife and children. They were boarding at the house of J. A. Fraser, at which place Judge Miller and his wife had with them for the use of themselves and their children, the property which was burned by fire, and which was a part of the personal property described in the policy of insurance in the clause above quoted and consisted of wearing apparel,

jewelry, satchels, trunks, books, etc., which | feiture) did not, in its terms, embrace some of property was usually contained in the resi- the articles that were afterwards destroyed, dence of Judge Miller at Wichita Falls when which were embraced in the contract part of he and his family were at home. At 2:30 P. M. the policy; and in discussing the effect of the on the said day a fire occurred at the house of forfeiture clause this court said: "If the conFraser, by which the wearing apparel, jewelry, ditions of warranties be repugnant to the poretc., belonging to Judge Miller was damaged tions of the policy describing the subject of and destroyed to the value of $840. There is insurance, the condition must yield to that no dispute of the claim of Judge Miller upon portion which expresses the terms of liability; any ground except that which is embraced in as if, for instance, the body of the policy the question agreed upon by the parties, which grants insurance upon a stock, such as is usuis as follows: "The issue to be determined ally carried in a 'country store,' or such as is under the above facts is whether or not de- usually carried in a 'retail store,' and the confendant is liable to plaintiff under the policy; ditions prescribing that the carrying in the the loss having occurred in Henrietta, Texas. stock certain articles named as extrahazardous Defendant claims that its policy under the will cause a forfeiture of the policy, and it facts limits its liability to losses which may appears from the evidence that the articles exoccur to the property while the same is located pressly named are usually carried in such and contained in the residence described in the stock and embraced in the terms of a policy policy. Plaintiff claims that the policy covers describing the subject, the clause of forfeiture the loss at Henrietta under the facts above re- must yield to the language of the body of the cited." To the question propounded we ans- policy and the forfeiture will not be enforced." wer that the property which was destroyed by This simply states the rule that, when there is fire at the city of Henrietta was not covered a conflict, the contracting party of the policy by the policy of insurance described in the will prevail over clauses of forfeiture. In statement submitted with the question, and other words, the court will not hold that the the insurance company was not liable for such insurance company did not intend to insure loss. that which it expressly contracted to insure; on the other hand, courts will not so construe plain language as to make a contract embrace that which it was intended not to include. It is insisted by the appellee that in the ordinary use of wearing apparel, jewelry, trunks, satchels, and the like, they would at times be absent from the residence of the owner, and that the agent of the insurance companies knew that the assured was in the habit of taking his family with him to the different places where he held terms of the district court in his district, and must have known that such things are generally used on such occasions; therefore the policy must be construed with reference to such general and known uses by the assured, and that the case comes within the line of authorities cited by the appellee to the effect that property thus used will be protected when absent from the house by a policy in which it is described as being "contained" in a certain house. However, in this policy, the insurance company so definitely and unequivocally expresses a contract by which it is not bound for the loss of the property when absent from the named place that there is no room for construction. The protection afforded by the policy is expressly limited to the time that the subject of insurance shall be contained in the house described, and whenever it was taken therefrom it was removed beyond the protection of the contract. Green v. Liverpool & L. & G. Ins. Co. 91 Iowa, 615; Mawhinney v. Southern Ins. Co. 98 Cal. 184, 20 L. R. A. 87; Haws v. St. Paul F. & M. Ins. Co. 130 Pa. 113, 2 L. R. A. 52.

While it is true that courts will construe the language of an insurance policy, and especially a clause of forfeiture contained therein, most strongly against the insurer, and in such manner as to protect the insured, if the language used is susceptible of such construction, it is likewise true that, when a party dealing with an insurance company has made a contract which is unambiguous in its terms, courts will construe and enforce it in the same way as if made between natural persons. A number of cases have been cited which construe the language "contained in" as being descriptive of the place at which the property is located at the time the insurance is obtained and others in which courts have held that such language must be construed with reference to the use of the property insured,—that is, if its ordinary use causes it to be absent from such place; and if, being so absent from the place mentioned, it is destroyed by fire, the property is never theless protected by the policy, and the insurance companies have been held to be liable therefor. McCluer v. Girard F. & M. Ins. Co. 43 Iowa, 349, 22 Am. Rep. 249; American Cent. Ins. Co. v. Haws (Pa.) 11 Atl. 107; Mills v. Farmers' Ins. Co. 37 Iowa, 400. But in the cases above referred to the terms of the policies were less definite than is the one now before the court. In the policy under consideration the property is insured "while located and contained as described herein, and not elsewhere," and in connection with the clause which describes the property which was destroyed by fire this language is used: "All while contained in the above described building," showing that the property was not insured while out of the house. It is claimed by the appellee that this case comes within the rule laid down in Bills v. Hibernia Ins. Co. 87 Tex. 547, 29 L. R. A. 706, and that the language used must be construed with reference to the ordinary use of the property insured. In the case of Bills v. Hibernia Ins. Co. the language under construction (a clause of for

The policy was not forfeited by the removal but remained in force, and covered the property when returned to the residence in Wichita Falls; hence the rule that demands a construction which would prevent a forfeiture has no application. The insurance company knowing that the class of property embraced in the policy was liable to be removed to other places provided against liability for it when located at such other points by the express and plain

limitations. The appellee likewise knew that, contract of insurance, and if he desired to have in the ordinary use of the property embraced it protected while using it away from home, in the contract of insurance it would be car- he could have made a contract expressing ried to other places than his residence in such liability on the part of the insurance comWichita Falls whereby it would be voluntarily pany. withdrawn from the protection afforded by the

WASHINGTON SUPREME COURT.

CARSTENS & EARLES, Appt.,

V.

LEIDIGH & HAVENS LUMBER COM. PANY, Respt.

(........Wash.........)

1. An order quashing a summons is ap

pealable under a statute permitting appeals from orders terminating the action or proceeding. 2. In the absence of proper exceptions to a finding on a mixed question of law and fact, the only question is whether the findings of fact warrant the conclusions of law. 3. Serving process on an officer of a foreign corporation which had no place of business in the state and had never done any business therein, when he was present only casually and temporarily in the state, is not sufficient to give jurisdiction to render a judgment in personam against the corporation.

(January 10, 1898.)

APPEAL by plaintiff from a judgment of

the Superior Court for King County in favor of defendant in an action brought to recover a balance alleged to be due for goods sold and delivered. Affirmed.

The facts are stated in the opinion. Mr. James Kiefer, for appellant: If a foreign corporation makes a contract within the state with a resident, and sends some of its officers, upon whom service may lawfully be made, to transact business within the state, and service be made upon such officer, the jurisdiction is complete.

No corporation organized outside the limits of this state shall be allowed to transact business within the state on more favorable conditions than are prescribed by law to similar corporations organized under the laws of this

state.

Const. art. 12, § 7.

Morawetz, Priv. Corp. § 977; Libbey v. Hodgdon, 9 N. H. 396; North Missouri R. Co. v. Akers, 4 Kan. 453, 16 Am. Dec. 183; Bushel v. Commonwealth Ins. Co. 15 Serg. & R. 176; St. Louis Perpetual Ins. Co. v. Cohen, 9 Mo.

421.

the laws of the state of Washington, and enAppellant, a corporation organized under gaged in dealing in shingles and other lumber nished to the respondent at its office in Kansas products, in the course of its business furCity, Missouri, price lists of these articles. Respondent wrote and telegraphed from time to time to appellant at its office in Seattle sundry orders for carloads of shingles. Appellant accepted these orders and deposited letters of acceptance in the postoffice at Seattle, and delivered the goods to carriers at Seattle, consigned to the defendant. This constituted a contract made in the state of Washington.

State v. Bristol Sav. Bank, 108 Ala. 3; 2 Parsons, Contr. 7th ed. p. 712; Tayloe v. Merchants' F. Ins. Co. 50 U. S. 9 How. 391, 13

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The contract having been made in the state of Washington, defendant, a foreign corporation, must be held to have submitted itself to the jurisdiction of the courts of the state when properly summoned according to the statute regulating service of process on corporations.

Colorado Iron Works v. Sierra Grande Min. Co. 15 Colo. 499; Dixon v. Order of Railway Conductors of America, 49 Fed. Rep. 910; National Condensed Milk Co. v. Brandenburgh, 40 N. J. L. 112; Klopp v. Creston City Guarantee Waterworks Co. 34 Neb. 808; Pope v. Terre Haute Car & Mfg. Co. 87 N. Y. 137; Hiller v. Burlington & M. River R. Co. 70 N. Y. 223; Morawetz, Priv. Corp. 977, and cases cited. See also Lafayette Ins. Co. v. French, 59 U. S. 18 How. 404, 15 L. ed. 451.

Messrs. Donworth & Howe, for respondent:

Failure to maintain an office in this state, or to appoint a statutory agent as required by our An order quashing the service of summons statute in that respect, is no bar to the right does not fall within the statute. To make an of such foreign corporation to maintain an ac-order appealable three things must concur: (1) tion in our courts against any of the citizens or residents of the state.

Foreign corporations making contracts within the state are liable to be sued in the courts of the state upon such contracts, and service upon any officer of the corporation in the state which would be good if made upon a domestic corporation, should be held to be good against such foreign corporation.

NOTE.-As to the person on whom process against a foreign corporation may be served, see note to Foster v. Charles Betcher Lumber Co. (S. D.) 23 L.

R. A. 490.

the order must affect a substantial right; (2) it must in effect determine the action; and (3) it must prevent a final judgment. Certainly the order quashing the service of summons did not determine the action. Neither did it prevent a final judgment therein.

Brown v. Edgerton, 14 Neb. 453; Roger v. Bertha Zinc Co. (Va.) 19 S. E. 782; Brown v. Rice, 30 Neb. 236; Reitmeir v. Siegmund, 13 Wash. 624; Freeman v. Ambrose, 12 Wash. 1.

A general exception to all the findings, such as appears in this case, is not sufficient for any

purpose.

Where appellant claims certain facts to be established by the evidence, he must request the trial court to find such facts; otherwise he cannot urge such alleged facts on appeal.

Ballard v. Keane, 13 Wash. 201; Hannegan | of its motion filed the affidavit of John H. v. Roth, 12 Wash. 65; Irwin v. Olympia Water- Leidigh, the president of the defendant corworks, 12 Wash. 112. poration, showing that he was not a resident of the state of Washington; that on the 29th day of January, 1897, he came to the state of Washington, arriving at Seattle on February 2, and was served with summons by the appellant in this action on the following morning. Affidavits and counter-affidavits were filed, the case was tried upon said affidavits, and a judgment was rendered in favor of the defendant, declaring the service of the summons to be void.

Davis v. Ford, 15 Wash. 107; Forrest v. Gilchrist, 14 Wash. 4.

The same rule applies where no findings of fact were made other than those incorporated in the decree or order appealed from.

Montesano v. Blair, 12 Wash. 188; Washington Brick, Lime & Mfg. Co. v. Adler, 12 Wash. 24; Stoddard v. Seattle Nat. Bank, 12 Wash. 658; Fremont Milling Co. v. Denny, 12 Wash. 251.

Conclusions of law made by the lower court cannot be reviewed unless duly excepted to. Laws of 1893, § 3, p. 112; Elliott, App. Proc. 793, and cases cited.

Service of process upon an officer or agent of a foreign corporation, casually or temporarily found within the jurisdiction, whether upon his own business or otherwise, will not give jurisdiction to render a judgment in personam against the corporation.

6 Thomp. Corp. § 8030, and authorities cited; Phillips v. Burlington Library Co. 141 Pa. 462; Clews v. Woodstock Iron Co. 44 Fed. Rep. 31; Moulin v. Trenton Mut. L. & F. Ins. Co. 24 N. J. L. 222; United States v. American Bell Teleph. Co. 29 Fed. Rep. 17; Carpenter v. Westinghouse Air Brake Co. 32 Fed. Rep. 434; St. Louis WireMill Co. v. Consolidated Barb Wire Co. 32 Fed. Rep. 802; Aldrich v. Anchor Coal & D. Co. 24 Or. 32; Rust v. United Waterworks Co. 36 U. S. App. 167, 70 Fed. Rep. 129, 17 C. C. A. 16; Fitzgerald & M. Constr. Co. v. Fitzgerald, 137 U. S. 98, 34 L. ed. 608.

As there has been no attachment of property in the case at bar, the action is purely one in personam, and therefore a judgment rendered against the defendant in this action would be without force.

Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; 6 Thomp. Corp. 7529; 8 Am. & Eng. Enc. Law, 1st ed. p. 384, and also 22 Am. & Eng. Enc. Law, 1st ed. p. 132.

The conduct of the plaintiff in inducing Mr. Leidigh to believe that an amicable adjustment of the account between appellant and respondent would be made with him, and then attempting to serve him with process the moment appellant found him within reach, with out beginning negotiations for an adjustment, would be an additional reason for quashing the service.

Fitzgerald & M. Constr. Co. v. Fitzgerald, 137 U. S. 98, 34 L. ed. 608.

Dunbar, J., delivered the opinion of the

court:

This action was brought by the plaintiff, a corporation under the laws of the state of Washington, to recover a balance of $910.43 for goods sold and delivered to the defendant, a corporation organized under the laws of the state of Missouri. Service was had upon the president of the defendant corporation in King county. The defendant appeared specially, and moved the court to set aside and quash the service of summons, and in support |

It is contended by the respondent in its motion to dismiss that this is not an appealable order; but, whatever might be said concerning an order refusing to quash a summons, we think it is evident that an order quashing a summons in effect determines the action or proceeding, and is therefore appealable, under

the statute.

It is objected also by the respondent that no proper exceptions were taken in the lower court to any of the findings of fact or conclusions of law made by the court, and we think this objection well taken. This case was tried as a mixed question of law and fact, and tried exclusively upon the affidavits which were considered by the court, and the court made its findings of fact and its conclusions of law in regular form. The findings of fact not having been excepted to under the rulings of this court in Rice v. Stevens, 9 Wash. 298, Hannegan v. Roth, 12 Wash. 65, and many subsequent cases, the only question for this court to determine is, Do the findings of fact warrant the conclusions of law? The court found that the defendant was a corporation duly organized and existing under the laws of the state of Missouri; that it had never appointed or had any agent residing in the state of Washington for any purpose whatever; had never done or carried on any business whatever in the state of Washington; had never had any property within the state of Washington; had never had an office for the transaction of business in any county in the state of Washington; and that it did not at any time have any officer or agent residing in any county in the state of Washington upon whom process might be served against said defendant company, or any officer or agent whatever of said defendant company. The appellant has based its argument so entirely upon the matters and things set up in the affidavits that it is of very little value to this court in determining the law governing this case, for, if we were to consider the affidavits, we might conclude that the transaction or sale had been made in the state of Washington; but the finding of the court is that the defendant has never done or carried on any business whatever in the state of Washington, and that John H. Leidigh, to whom a copy of summons and complaint were delivered, was at said time only casually and temporarily in the state of Washington, and has since departed therefrom; so that the argument of appellant made on the 16th, 17th, 18th, 19th, and 20th pages of its brief, in relation to the purpose for which Mr. Leidigh came to this state and the capacity in which he was acting, is not in point in the discussion of this case. We think, from an

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